Exempt from Vaccination, Excluded from School

Unvaccinated children in the state of New York will continue be excluded from school during outbreaks of vaccine-preventable illnesses (VPIs), even if they have been granted a religious exemption to vaccinations, a judge for the U.S. District Court for the Eastern District of New York recently ruled. In Phillips v City of New York, three families brought constitutional and state law challenges to a state policy requiring the exclusion of unvaccinated children from school during outbreaks of diphtheria, polio, measles, rubella, and mumps until the danger of transmission has passed (10 NYCRR sec. 66-1.10).

The children of two of the families had received religious exemptions to the vaccination requirements, while one was denied an exemption. The families argued that the exclusion provision violated their First Amendment right to free exercise of religion, as well as their rights to due process under the Ninth Amendment and equal protection under the Fourteenth Amendment, and rights conferred by the New York Constitution and state laws. Judge William F. Kuntz dismissed the allegations, noting “courts in this Eastern District have resolutely found there is no such constitutional exemption” to vaccination based on religion. He referred to Second Circuit case law establishing that the vaccine program falls within the state’s police power; thus, “its constitutionality is too well established to require discussion.

Exemption Policy

In New York, children may receive a religious exemption to vaccinations if their parent submits a statement of sincerely held religious belief describing “the religious principles that guide [his or her] objection to immunization.” If parents only seek exception from certain immunizations, they must explain “the religious basis that prohibits particular immunizations.” If an explanation is deemed insufficient, the Department of Education may request additional documentation in support of the belief. New York differs in this requirement from other states that merely require a statement from parents that they hold a sincere religious belief.

Dina Check claimed that her daughter was denied a religious exemption after a nurse mistakenly submitted a request for a medical exemption on her daughter’s behalf. Check maintains her beliefs are sincere. “Disease is pestilence, and pestilence is from the devil. The devil is germs and disease, which is cancer and any of those things that can take you down. But if you trust in the Lord, these things cannot come near you.” The families’ lawyer has filed a request for rehearing and may appeal the decision.

Upcoming Expansion

The exclusion provision is intended to prevent the spread of disease among susceptible children. Twenty-five cases of measles were reported in New York City between February and April, including two unvaccinated children of school age, one of whom was home-schooled. Officials excluded the child’s sibling from attending school; the sibling later developed the measles. Officials cite to this instance as an example of the importance of the exclusion provision in preventing the spread of illness. On July 1st, new regulations broadening the state’s exclusion powers to include varicella (chicken pox), Haemophilus influenzae type b (Hib), pertussis (whooping cough), tetanus, pneumococcal disease, and hepatitis B will become effective.